Did Jefferson Abuse His Authority to Count Himself into the Presidency?

by Bruce Ackerman

Mr. Ackerman is Sterling professor of law and political science at Yale. He is happy to thank David Fontana, his collaborator in the discovery of the original Georgia ballot, and who was a co-author in the extensive work necessary for its full documentation and interpretation. See Bruce Ackerman & David Fontana, Thomas Jefferson Counts Himself Into the Presidency, University of Virginia Law Review, vol. 90, pp. 551-643 (2004); Bruce Ackerman & David Fontana, How Jefferson Counted Himself In, Atlantic Monthly, pp. 84-95 (March, 2004).

As sitting Vice-President, Thomas Jefferson was President of the Senate in 1801, and the Constitution assigned him the job of presiding over the final stages of the bitter presidential election of 1800. When the electoral votes came in from the states, it was up to him to open the envelopes and announce the results. There was only one problem – Jefferson himself was running for president against John Adams, and his rulings from the chair could determine whether he or Adams would be president.

Despite its potential importance, no modern scholar has studied how Jefferson exercised his powers. The Failure of the Founding Fathers provides indisputable evidence that he used his authority to count himself into the presidency.

The problem involved Georgia’s electoral vote. The original document in the National Archives violates the express terms of the Constitution. Nevertheless, Jefferson ignored these blatant constitutional defects, and counted all four of Georgia’s electoral votes into his own column. If he had excluded the ballot, he might have lost the presidency to John Adams. It’s also quite possible that Adams’s running-mate, Charles Coatesworth Pinckney, might have become the third President of the United States!

The Founders thought they needed a backstop for the Chief Executive, but they didn’t know what to do with the vice-president while the President was alive. For want of anything better, they assigned him the largely ceremonial presidency of the Senate. But this job occasionally wields real power, and the Framers failed to deal with this problem adequately. Here is all they said about the vice-president’s role in counting the electoral votes: “The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.”

These instructions sufficed if the vice-president did not find any problems with the electoral votes. But if he “open[ed] all the Certificates,” and discovered a serious legal difficulty, the Founders managed to have put the fox in charge of the chicken coop. The sitting vice-president is predictably a leading presidential candidate the next time around. Yet the Constitution makes him a central player in deciding whether he has beaten his rivals.

The Founders’ blunder had potentially explosive consequences in 1801, when the time came for Jefferson to open the electoral votes. In those days before the enactment of the Twelfth Amendment, electors did not cast a separate ballot for the vice-presidency. Each elector named his two top choices for the presidency, and the candidate who received the second largest vote count got the vice-presidency as a consolation prize. These rules, however, failed to anticipate the rise of the party system during the course of the 1790’s. When all the Republican electors cast their ballots for Jefferson and running-mate Aaron Burr, the two candidates found themselves tied with one another -- and in this circumstance, the Constitution forced both of them into a run-off in the House of Representatives, which would make the final choice.

Now comes the tricky part. If Jefferson and Burr won the support of a majority of the electors, they would be the only two candidates in the run-off. But if they fell short, the Constitution provided that the top five candidates enter the House run-off. Since there were 138 electors in 1800, the magic number was 70. If Jefferson and Burr fell below this threshold, they faced a House challenge from their Federalist rivals.

We can now appreciate the key role of Georgia’s four electoral votes. If Jefferson and Burr could count Georgia’s ballots in their column, they would both receive 73 electoral votes, and their Federalist competitors would be barred from the House run-off. But if Georgia were excluded, their total dropped to 69, and the two Republicans would be joined by the Federalists John Adams, Charles Coatesworth Pinckney and John Jay.

Wednesday, February 11 marked the constitutional moment of truth. Jefferson presided over the vote counting ritual in the midst of a snowstorm so severe that congressmen could barely make their way to the half-built Capitol to hear the result. As each state was called, Jefferson opened the envelope, and passed it to the Senator and two Representatives who served as tellers. Here is what Jefferson saw when Georgia’s turn came:

Although the Constitution is a famously short document, it devotes an entire sentence to defining a legally valid presidential ballot, requiring electors to “make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government.” Although the Georgians prepared a “list,” nothing identifies Jefferson and Burr as “the Persons voted for.” Indeed, it isn’t even clear that the Georgia document is an electoral vote at all, let alone one that has been “signed” and “certified” as such.

Nevertheless, Jefferson counted it, without giving Congress a chance to consider or overrule his decision. Before condemning him, consider the consequences if he had allowed Congress to intervene. Since there were Federalist majorities in both Houses, Congress would probably have overruled him, opening the door for one of their own candidates to gain the presidency in the House run-off. This result would have been even more shocking, since the Georgia mistake was merely technical, and the state had indeed given their votes to Jefferson and Burr.

The Failure of the Founding Fathers tries to place these, and other striking limitations of the Founders’ design, into historical perspective. But there is more than history at stake. The Constitution continues to assign the vote-counting job to the sitting vice-president. In 2000, for example, it was Al Gore’s job to preside over the electoral vote count in his hotly-disputed presidential contest with George W. Bush. By the time Gore’s chance came on January 6, 2001, the Supreme Court’s decision in December had reduced the vote-count to an empty ritual. But when the next Electoral College crisis strikes, the Court may not be so interventionist, and it may be up to the President of the Senate, in collaboration with the Congress, to make a final decision on a disputed election. At that point, Thomas Jefferson’s actions of 1801 will serve as a crucial precedent, and we will need all the help that history can give us in muddling our way through yet another constitutional crisis generated by the Founders’ failures in constitutional design.

More Comments:

Lawrence Brooks Hughes -
3/20/2007

I think Jefferson would have been more at fault by rejecting the Georgia electoral votes than by accepting them. After all, he knew, and everyone else knew, that Georgia had voted for Jefferson & Burr, and the problem was only a clerical error. Jefferson deserves more criticism for having his agents maneouver the admission of Ohio into the union in 1803 without sufficient population, in order that Ohio's electoral votes could be cast to support him for reelection in 1804, which they were. (The story to remember about the 1800 election is how Hamilton crucially influenced the selection of Jefferson over his fellow New Yorker Aaron Burr).